Opinion
2003-141 P CR.
Decided October 16, 2003.
Appeal by defendants from judgments of conviction of the Justice Court, Town of Southeast, Putnam County (J. Borkowski, J.), rendered on November 20, 2002, following a non-jury trial, finding defendant William R. Boyar, Sr. guilty of 15 counts of violating Environmental Conservation Law §§ 27-0712 (2) and 71-2703 (2) (a) and its implementing regulations ( 6 NYCRR 360 et seq.), and sentencing him en bloc on all counts to 5 days' incarceration and a $30,000 fine.
Judgments of conviction rendered against defendant William R. Boyar, Sr. upon six simplified informations, dated October 23, 2001 and November 8, 2001 and filed against defendant Mahopac Scrap Metal Recycling, Inc., unanimously reversed on the law and the subject informations dismissed.
PRESENT: DOYLE, P.J., RUDOLPH and SKELOS, JJ.
Remaining nine judgments of conviction against defendant William R. Boyar, Sr. unanimously modified on the law by vacating the sentence imposed thereon en bloc and remanding the matter to the court below for resentencing.
Appeal by defendant Mahopac Scrap Metal Recycling, Inc., unanimously dismissed as no judgment of conviction was entered against said defendant and thus it is not an aggrieved party.
The corporate defendant, Mahopac Scrap Metal Recycling, Inc. ("Mahopac Scrap Metal") was charged in six simplified informations with violations of Environmental Conservation Law §§ 27-0712 (2) and 71-2703 (2) (a) and its implementing regulations ( 6 NYCRR 360 et seq.), and its principal officer, defendant William R. Boyar, Sr. was charged in nine simplified informations with violations of Environmental Conservation Law § 71-2703 (2) and its implementing regulations ( 6 NYCRR 360 et seq.). Following a trial, defendant Boyar was convicted on all 15 counts, including those interposed solely against Mahopac Scrap Metal.
The simplified informations charging Mahopac Scrap Metal with 5 violations on October 23, 2001 and one violation on November 8, 2001, upon which the record reflects only defendant Boyar was convicted, must be dismissed. While an individual may be held criminally liable for a corporation's acts pursuant to Penal Law §§ 20.20 and 20.25, as in any other case, the individual must be actually charged with such offense. As Boyar was not named in any of these six simplified informations, he may not be convicted upon them. The corporation was the proper defendant upon the informations naming it, however, the judgment does not reflect that the corporate defendant was found guilty of any of said charges.
The court below properly denied defendants' motion to dismiss on speedy trial grounds. The record on appeal reflects that counsel's oral application to dismiss on this ground and request for adjournment to prepare a written motion were untimely, as they were made after the People rested, not prior to the start of trial as required and as defendants now contend ( see CPL 210.20 [g], [2]; People v. Lawrence, 64 NY2d 200). The defendants did not raise an objection to the court's account that the motion was made after the People rested, noting only that they had "made an oral application to the court to dismiss the matter" prior to commencement of trial without stating the facts or grounds of the application. Thus, defendants failed to make an adequate record of their contentions for this court to review ( see People v. Barney, 99 NY2d 367; People v. Kinchen, 60 NY2d 772).
As to the individual defendant, Penal Law § 20.25, providing that "A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf," means that an individual can be charged with such conduct and cannot hide behind the corporate forth. With respect to the nine informations naming Boyar as the defendant, the court's verdict of guilt as to said defendant was supported by the record. However, the matter must be remanded for resentencing, as the court erred in imposing a single fine and term of incarceration against defendant Boyar covering the multiple informations. CPL 380.20 requires that where convictions are entered upon multiple counts, the court must pronounce sentence upon each count ( see People v. Sturgis, 69 NY2d 816).